Is it possible to be dismissed during sick leave?

Practically all workers, when facing a temporary disability leave, are often afraid of being dismissed. In all honesty, there are many doubts about the legality or illegality of this fact. So many that, at the moment, it is one of the main questions that lawyers in Madrid specialising in the field of employment receive. Here we would like to answer them.

Are there cases in which the worker cannot be dismissed while on sick leave?

The general rule literally does not provide for dismissal during the period of sick leave due to temporary incapacity. However, this does not mean that it cannot take place. The main requirement is that the company provides a legal reason for dismissal.  
 
Obviously, unless the employee has lied about the reason for his or her sick leave, it is very difficult to provide disciplinary reasons for dismissal. This is the reason why most companies invoke technical, production, organisational and, in general, economic reasons to be able to use the objective dismissal formula, the only one contemplated during the period of temporary incapacity.  

What does the general rule say about dismissals during sick leave?

The answer is yes. In fact, the current legislation, due to recent rulings of the European Court of Justice, has recently changed in this respect. But before explaining it, it is worth bearing in mind when a dismissal is unfair and when a dismissal is null and void.

Unfair dismissal

Judges determine that a dismissal is unfair when there is no justified reason to do so, i.e. when the alleged reasons are not included as grounds for objective dismissal. It also occurs when the termination of the contract is not carried out in accordance with the minimum requirements established by law. This is the case, for example, when 15 days' notice is not given.  
 
When a judge determines that a dismissal is unfair, the company can choose between compensating the worker according to the scales established by law or, failing that, reinstate him/her in his/her previous position.  

Null and void dismissal

A dismissal is considered null and void when it is considered that the employer has violated or undermined the fundamental rights and freedoms of the employee, which are enshrined in the Constitution. This is the reason why, for the most part, the termination of the contract during the period of sick leave is considered null and void. This is especially the case if it takes place during pregnancy-related leave (maternity or paternity leave, risks during breastfeeding or pregnancy, pregnancy-related illnesses, etc.).  
 
Whenever a judge establishes that a dismissal is null and void, the employer is obliged to reinstate the employee in his or her position and to pay him or her the wages between the time of the termination of the contract and the nullity judgment.  
 
So, are dismissals during sick leave unfair or null and void? 
 
Traditionally, judges have ruled that dismissals occurring during a period of sick leave were unfair. However, following the 
the European High Court of Justice, the Spanish Supreme Court, by means of its case law, changed the rule so that they became null and void whenever a reason for objective dismissal could not be adduced.  

What does dismissal for objective reasons during temporary disability leave entail?

We have already mentioned that, as long as the dismissal does not undermine a fundamental right of the worker related to his or her sick leave and there is an objective reason to carry it out, it can be done.  
 
However, the legislation provides for a series of special requirements in order to be able to carry it out. These are:  
 

• The employer must make a written statement clearly stating the reason for the dismissal and the grounds for the dismissal. 
• The employer must pay the dismissed worker, in all cases, compensation corresponding to 20 days per year worked. The limit is set at 12 monthly payments. 
• The employer must also give the employee notice of dismissal at least 15 days before the date on which the dismissal is to take effect. In addition, the employer must grant 6 exceptional hours per week during that time to look for another job. 
• If the reason given by the company is economic, it may not be obliged to pay the amount of compensation immediately. In any case, the deadline for doing so will be the date on which the dismissal becomes effective. 

What happens to the temporary incapacity benefit?

If the company can provide an objective reason for the dismissal and the dismissal is carried out while the worker is still on sick leave, he/she will continue to receive the same amount that he/she was receiving until the moment he/she is discharged. From that moment on, he/she will start receiving unemployment benefits.

However, when determining who pays, the reason for the sick leave must be taken into account.

Dismissal during sick leave due to common illness 

If the dismissal is for objective reasons and the reason for which the worker is on sick leave is considered to be a common illness, the Public State Employment Service (SEPE) will be responsible for paying the amount each month.  
 
We have already told you that, from the moment of dismissal to the moment of discharge, the worker will continue to receive the same amount. However, this amount will be deducted from the unemployment benefit that corresponds to him/her.    

Dismissal during sick leave due to an accident at work

The truth is that, in many cases, dismissals during sick leave due to accidents at work are often automatically considered null and void. However, there are exceptions.  
 
In this type of case, the payment of the monthly payments corresponding to the period between the dismissal and the date of the worker's discharge is the responsibility of the mutual insurance company to which the worker was affiliated. In addition, the total amount will not be deducted from the unemployment benefit to which the worker is entitled. 
unemployment benefit to which he/she is entitled. Therefore, as soon as he is medically discharged, he will begin to receive this benefit intact.

Conclusions on dismissal during sick leave due to temporary disability

At this point, we can come to a very clear conclusion: the employer has the power to dismiss the employee even if he/she is on sick leave as long as he/she has an objective reason and does not undermine any of the fundamental rights and freedoms enshrined in the Constitution. If he does so, the dismissal will automatically be considered null and void. In the event that it does, it will have to be carried out under special conditions set out in the legislation with the purpose of protecting the worker against this type of contingency.
 
In any case, in case of any doubt, the worker will always be able to sue his company to preserve his rights. To do so, the best thing to do is to put yourself in the hands of an experienced team of lawyers in Madrid. Our lawyers specialised in dismissals will help you. Contact lawyers G. Elías y Muñoz.